Congress may be in "lame duck" session, but there's nothing "lame" about the pace of work at CDT, as we respond to the announcement of major policy initiatives by Federal agencies on issues critical to the future of the Internet.

FTC Issues Privacy Report

The Federal Trade Commission released on December 2 its long-awaited staff report on privacy. The report, intended to guide policymakers as well as companies, sets out an updated framework for addressing the increasingly complex consumer privacy landscape. The report acknowledges that the FTC's prior approach to privacy, which focused on notice-and-choice and harms to users, was inadequate, and it reiterated prior findings that self-regulation, while important, also falls short.

The report stresses the themes of privacy by design, simplified choice, and greater transparency. As developed in the report, the three concepts encompass all the Fair Information Practice principles recommended by CDT in its comments to the FTC, including data minimization, data quality, and access.

The report also reinvigorated the conversation about creating a "Do Not Track" system for the Web. While CDT was one of the originators of that idea, we recognize that it is not a complete solution.

Many questions remain after the report, most importantly how the agency will implement this new framework. In CDT's view, the FTC has limited ability to implement the principles in the absence of legislation, which CDT supports.

The FTC report is a draft, with comments due January 31, 2011. CDT will be filing extensive comments, following consultation with a range of stakeholders.

Net Neutrality Comes to a Vote

The FCC's Chairman, Julius Genachowski, has announced that he expects the Commission to vote on "net neutrality" rules at its December 21 meeting. The text of the proposal isn't public yet, but CDT believes this would be a big step forward. The Internet's open character is too important to leave to chance. The handful of companies that provide most consumers with access to the Internet's "on ramps" should of course have substantial freedom to run their businesses and to seek profits as they see fit. However, they should not be allowed to kill the goose that laid the golden egg by phasing out the concept of an open Internet and replacing it with a gatekeeper-controlled medium. Yet, since the D.C. Circuit's decision in April in the Comcast case, it has been at best unclear whether the status quo offers any protection for Internet openness at all.

The ultimate impact and effectiveness of FCC action will depend in part on the actual language of any final order and rules and in part on how the FCC and (perhaps) reviewing courts interpret and enforce those rules over time.

Bill Controlling Domain Names Moves Forward

The Senate Judiciary Committee recently approved a bill allowing the Department of Justice to use the domain name system to block sites facilitating copyright and trademark infringement. While the Committee removed one provision authorizing the Attorney General to create a "blacklist" of disfavored sites, the bill, the Combating Online Infringements and Counterfeits Act (COICA), remains deeply flawed.
CDT is concerned that the bill is likely to be both ineffective in curtailing copyright infringement and hazardous to free speech. Enforcement mechanisms targeting domain names will be easily evaded by both rogue sites and individual usersâ to the point where the impact on infringement will ultimately be negligible. At the same time, taking down entire domains will affect lawful as well as unlawful content and will encourage countries everywhere to try to use the domain name system to enforce domestic laws against non-domestic websites, even sites with content that is legal in other countries. The approach may also undermine efforts to improve the security of the domain name system.